July 8, 2011

Psychology YM, P.C. v Geico Gen. Ins. Co. (2011 NY Slip Op 51316(U))

https://www.beynensonlaw.com/case-law/psychology-ym-p-c-v-geico-gen-ins-co-2011-ny-slip-op-51316u/

Court: Appellate Term, Second Department
Decided: July 8, 2011
Citation: 2011 NY Slip Op 51316(U) · 32 Misc 3d 130(A)
Posture: Trial
Later treatment: Followed in 2 later decisions (see Cited by)
Issues: Trial and evidence Medical necessity
Legal questions: Lack of medical necessity (see the maps)

Cite as

Psychology YM, P.C. v Geico Gen. Ins. Co., 32 Misc 3d 130(A), 2011 NY Slip Op 51316(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The insurer's peer reviewer was improperly precluded from testifying because the written report was not in admissible form. The parties stipulated that medical necessity was the sole issue for a nonjury trial in the provider's action for assigned no-fault benefits. The insurer offered the psychologist who prepared the peer review supporting its denial. The witness was prepared to explain the factual basis and medical rationale for the opinion that the services lacked medical necessity and was subject to cross-examination. Those circumstances made preclusion erroneous despite the report's inadmissible form. The Appellate Term, Second Department, reversed the judgment for the provider and remitted the matter to the Civil Court for a new trial.

Reported in New York Official Reports at Psychology YM, P.C. v Geico Gen. Ins. Co. (2011 NY Slip Op 51316(U))

[*1]

Psychology YM, P.C. v Geico Gen. Ins. Co.

2011 NY Slip Op 51316(U) [32 Misc 3d 130(A)]

Decided on July 8, 2011

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 8, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : WESTON, J.P., PESCE and RIOS, JJ
2010-918 K C.

Psychology YM, P.C. as Assignee of JAMES BROWN, Respondent,
against
Geico General Ins. Co., Appellant.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Johnny Lee Baynes, J.), entered October 9, 2008. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,078.48.

ORDERED that the judgment is reversed, without costs, and the matter is remitted to the Civil Court for a new trial.

In this action by a provider to recover assigned first-party no-fault benefits, the parties stipulated, prior to trial, that the sole issue to be litigated would be whether the services rendered to plaintiff’s assignor were medically necessary. At a nonjury trial, the Civil Court granted plaintiff’s motion to preclude the testimony of defendant’s witness, the psychologist who had prepared the peer review report upon which defendant’s claim denial was predicated, because his peer review report was not in admissible form. The Civil Court thereupon awarded judgment in favor of plaintiff in the principal sum of $1,078.48.

In view of the fact that defendant sought to call as a witness its psychologist, who was prepared to testify about the factual basis and medical rationale for his opinion, as set forth in his peer review report, that there was a lack of medical necessity for the services rendered, and since he was subject to cross-examination, it was error for the Civil Court to have precluded him from testifying (see Dilon Med. Supply Corp. v New York Cent. Mut. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52454[U] [App Term, 2d & 11th Jud Dists 2007]; Spruce Med. & Diagnostic, P.C. v Lumbermen’s Mut. Cas. Co., 15 Misc 3d 143[A], 2007 NY Slip Op 51104[U] [App Term, 1st Dept 2007]; Home Care Ortho. Med. Supply, Inc. v American Mfrs. Mut. Ins. Co., 14 Misc 3d 139[A], 2007 NY Slip Op 50302[U] [App Term, 1st Dept 2007]). Accordingly, the judgment is reversed and the matter is remitted for a new trial.

Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: July 08, 2011

Legal questions

A question of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

Lack of medical necessity

Open the full map

Did the insurer’s proof establish lack of medical necessity, and did the provider’s evidence rebut it?

This decision: Trial ruling on burden or admissibility of the insurer's proof; matter sent back without a finding

Held it was error to preclude the peer reviewing psychologist from testifying about the factual basis and rationale for his opinion merely because his report was not in admissible form, since he was subject to cross-examination; new trial ordered.

Unrebutted, insurer prevailsProvider's rebuttal sufficientInsurer raised triable issueInsurer's proof insufficientTrial error, new trialThis decisionCites it or cited by itCited or followed

Of the 617 decisions on this question in the Second Department courts and the Court of Appeals, 32 (this one included) are in the same category. 2 decisions in other departments that cite or are cited by this one are on the full map.

Cited in this decision

A label shows how this decision treated the case it cites.

Dilon Med. Supply Corp. v New York Cent. Mut. Ins. Co. (2007 NY Slip Op 52454(U)) FollowedAn insurer may call a substitute medical expert, subject to cross-examination, to address the original peer reviews' rationale.
Spruce Med. & Diagnostic, P.C. v Lumbermen’s Mut. Cas. Co. (2007 NY Slip Op 51104(U)) FollowedAn insurer's medical expert need not be the peer reviewer if cross-examination is available and testimony stays within the stated denial basis.
Home Care Ortho. Med. Supply, Inc. v American Manufactures Mut. Ins. Co. (2007 NY Slip Op 50302(U)) FollowedAn insurer's medical-necessity expert may testify without having performed the original peer review if testimony stays within its grounds.

Cited by

A label shows how the later decision treated this one.

Radiology Today, P.C. v Progressive Ins. Co. (2011 NY Slip Op 51724(U)) FollowedThe insurer's expert should have been permitted to testify although that expert did not prepare the peer review underlying the denial.
Bajaj v GEICO (2012 NY Slip Op 51106(U)) FollowedA substitute medical expert may support a medical necessity defense at trial without admission of the underlying peer review report.
A-Quality Med. Supply v GEICO Gen. Ins. Co. (2013 NY Slip Op 23088)An insurer's peer review report is inadmissible at trial to prove lack of medical necessity.
Park Slope Med. & Surgical Supply, Inc. v Progressive Ins. Co. (2012 NY Slip Op 50349(U))An insurer's trial expert may testify on medical necessity without having authored the peer review, within the original report's denial basis.
Park Slope Med. & Surgical Supply, Inc. v Progressive Ins. Co. (2011 NY Slip Op 52300(U))An insurer's substitute medical expert may testify on medical necessity, limited to the denial grounds in the original peer review report.
Metropolitan Med. Supplies, LLC v GEICO Ins. Co. (2012 NY Slip Op 51490(U))An insurer's medical expert may testify without having prepared the peer review, but must stay within the denial's stated basis.
Atlantic Radiology Imaging, P.C. v GEICO (2013 NY Slip Op 52256(U))A substitute peer-review expert may testify at trial within the original report's grounds, even if that report is not admitted.

Similar decisions

Five Boro Psychological Servs., P.C. v GEICO Gen. Ins. Co. (2012 NY Slip Op 51057(U))The insurer's peer review reports were inadmissible because they used a psychologist's affirmations rather than sworn statements.
Psychology YM, P.C. v Nationwide Mut. Ins. Co. (2009 NY Slip Op 51634(U))The provider failed to establish entitlement to summary judgment because its billing company's affidavit did not comply with CPLR 4518.
Sigma Psychological, P.C. v GEICO (2012 NY Slip Op 50868(U))The insurer's sworn peer review established lack of medical necessity for psychological services, and the provider did not rebut it.
Jamaica Med. Plaza, P.C. v GEICO Gen. Ins. Co. (2017 NY Slip Op 51837(U))An insurer's substitute medical expert may testify on lack of medical necessity within the grounds stated in the original peer review report.
Comprehensive Psychological Servs. of NY, P.C. v GEICO Ins. Co. (2017 NY Slip Op 51815(U))The provider failed to prove medical necessity after the insurer's expert testimony shifted the burden at trial.